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A Tough Eight Years

The outgoing administration has extended executive branch and regulatory powers, presenting challenges for forest landowners. Will the new administration offer change?

By Jake Cremer

The past eight years of federal regulatory policy have not been good for the forest landowner. After 9/11, President Bush aggressively expanded the executive branch power, focusing on national security. President Obama pushed this expansion of executive branch into many other areas, including health care and the environment.

In many cases, when the Obama Administration has failed to achieve its goals legislatively, it has used regulatory powers instead. Take, for example, the use of executive orders to keep the Affordable Care Act going when it was not working. Or the use of executive orders broadening trade with Cuba despite an embargo that only Congress can lift.

President Obama did not have much of an environmental policy during his first term. Few high-profile environmental regulations were developed in those early years. But then early in his second term, as the online magazine POLITICO reported, Obama realized that “one of the few areas where a president can act unilaterally and to broad effect” is the environment. This led to an explosion in environmental rule development.

The most prominent example has been a series of climate change measures including the Clean Power Plan. These measures are designed to remake the country’s energy industry by eliminating the use of coal. The U.S. Environmental Protection Agency’s (EPA) mandate of sweeping changes to an entire industry has been questioned as only something Congress can do. Earlier this year, the U.S. Supreme Court prohibited EPA from implementing it until courts could review it further.

The regulation that has hit home most for forest landowners has been the Waters of the United States (WOTUS) rule. This rule would expand federal jurisdiction for EPA and the U.S. Army Corps of Engineers to regulate water bodies and wetlands. By some estimates, more than 20 million acres would become subject to federal Clean Water Act regulation for the first time.

EPA pressed ahead to implement WOTUS despite warnings from the Army Corps that the rule had fatal problems. Meanwhile, the Government Accountability Office found that EPA had engaged in improper “covert propaganda” to promote the rule. For now, federal courts have also prohibited the EPA and Army Corps from implementing this rule while they study its merits.

Yet this trend of expanding executive power is not unusual. In fact, the American regulatory state has grown exponentially since the beginning of World War II. Take the number of pages in the federal government’s daily journal of proposed and new rules, the Federal Register. In 1942, only about 10,000 pages per year were being published—compared with over 80,000 pages last year. Ronald Reagan looks to have been the only modern president who successfully slowed the growth of pages (and presumably, regulations). Even he, though, could not actually cut the total pages of federal regulations on the books. These have grown almost every year since 1975.

This shocking growth, no matter the president or the party in control of Congress, is why I am uncertain whether our industry will see much of a difference between a President Clinton or a President Trump—at least in terms of federal environmental policy. If a more limited government and fewer regulatory restrictions to doing business is on your agenda, the choice between the candidates is surprisingly difficult.

On one hand, Hillary Clinton has vowed to accelerate President Obama’s environmental initiatives. She has said she would continue pushing forward the Clean Power Plan and find ways to regulate fracking. Mrs. Clinton’s record on environmental issues, though, shows she is actually more pragmatic than her rhetoric. For example, she offered support for the Keystone XL pipeline as secretary of state, even though years after she left office, she said she opposed it. And as secretary of state, she even set up an office within the Department of State to promote fracking around the world.

On the other hand, Donald Trump has said that he would scale back the EPA (along with several other federal agencies). He has said that business and landowners must be given more freedom. Yet Mr. Trump has offered few details on how he would achieve these goals, which have proven elusive for recent Republican presidents.

Consider also that Mr. Trump hardly has a history of championing free markets. He has aggressively used the government to his own benefit by using eminent domain to take land from others so that he could develop it. If he makes good on his campaign pledges, he would probably spark trade wars across the globe.

On balance, a President Clinton would not be as bad as her detractors fear, but a President Trump probably would not bring as much change as his supporters imagine. If this is true, and the choice is not as stark as it seems, where should we turn? Is there any way to reverse the ever-growing tide of new federal regulations in the other two branches of government?

In the courts, landowners have seen modest successes through litigation. As mentioned, courts have stayed both the Clean Power Plan and WOTUS while courts examine them further. And just this year, the Supreme Court gave landowners a new tool to challenge federal jurisdiction over wetlands in the Hawkes case.

Another bright spot, after nearly fifteen years of litigation, was the recent news that the EPA announced that it did not intend to regulate storm water from forest and logging roads. This decision confirmed more than 37 years of federal policy under the Clean Water Act to consider these roads as best suited for regulation at the state level through Best Management Practices (BMPs). Nevertheless, EPA had been under a court order to determine whether there was a need for it to step in. EPA decided that BMPs were doing their job.

In Congress, landowners also have found some modest successes. For example, during the forest roads controversy, Congress amended the Clean Water Act to prohibit the use of existing permit procedures to permit forest roads and to prohibit environmental organizations from using the Clean Water Act to sue forest landowners for most silvicultural activities. Congress has also passed legislation that would require EPA to rewrite WOTUS, but so far it has not been able to overcome President Obama’s veto.

The good news, then, is that some progress is being made in the other two branches of government. The bad news is that the progress is frustratingly slow.

Still, I am reminded of what one of the first attorneys I worked for out of law school told me: environmental law is really just “politics with the appearance of law.” If forest landowners are frustrated with the growth of federal rules and regulations over the past 70 years, we cannot look to a new president to help. Even President Reagan could only slow the growth. He could not stop it.

Instead, our industry must look to the courts and Congress to protect our rights. This election year gives a great opportunity to send new elected representatives to Congress with a simple message: the status quo is unacceptable.

Jake Cremer is an attorney at Stearns Weaver Miller in Tampa practicing environmental, land use, agriculture, and property rights law. His family owns a timber farm and timber brokerage in North Florida, and he is the sixth generation to be involved in silviculture in Florida.

*This article initially ran in the November/December issue of Forest Landowner, the official publication of the Forest Landowners Association.